Posted on 09/13/2009 4:43:26 AM PDT by Kaslin
In the state of nature... all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law."
Charles de Montesquieu
In the ongoing debate over health care reform, critics on the right are increasingly citing the lack of tort reform as a major deficiency of the current proposals floating around the halls of Congress. Instead of focusing on truly conservative solutions to our nation's mounting health care crisis, Republican lawmakers and pundits are playing the same old song-and-dance?blaming ballooning health care costs on trial lawyers. This red herring tactic is a classic example of politicians trampling principle in pursuit of politics. In this case, Republicans moonlighting as "conservatives" seek to use tort reform to shield corporate malefactors (who also happen to be their financial benefactors) from full accountability for their wrongdoing. In so doing, they are undermining a bedrock principle of our nation's justice system.
For years, Big Business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system. These corporate interests have a vested interest in keeping the tide of public opinion running against trial lawyers because it deflects attention from the widespread problem of negligent and reckless conduct that injures consumers. This "shoot the messenger" tactic not only enables businesses to avoid financial accountability for wrongdoing?it deliberately undermines the people's civil liberty.
The reality is that trial lawyers are the people's first line of defense to secure redress of grievances for private or civil wrongs committed against them. The most highly publicized of these kinds of cases usually involve David and Goliath-type scenarios?think of the massive frauds committed by WorldCom, Enron, or Bernie Madoff and you get an idea why trial lawyers are essential to securing justice for those wronged at the hands of well-heeled rogues with deep pockets and limitless legal resources. And yes, sometimes these cases involve substantial claims against doctors or hospitals accused of malpractice.
Despite unfair characterizations to the contrary, medical malpractice is no joke. Every day thousands of Americans walk into doctors' offices, emergency rooms, and operating rooms trusting their lives to the expertise and integrity of the medical system. Errors in diagnosis, misread charts, medication errors... all can cause irreparable harm to their victims. And these kinds of accidents happen often?far more than Republican advocates of "reform" are willing to admit and far more than most people realize. According to several studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of preventable medical errors. These statistics place death by malpractice as the 6th leading cause of death in the United States.
For the victims and their families, the tragedy inflicted as a result of medical malpractice is very real, and the process of seeking a just remedy can be overwhelming. It is for precisely these kinds of situations that the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers. This right is a foundational principle of our civil liberty and should be a core tenet of conservatism because it affirms the responsibilities citizens have in a free society and the accountability of all before the law.
Nevertheless, the importance of the civil justice system and the right to trial by jury is poorly understood by many conservatives because trial lawyers are constantly demonized by special interests seeking to evade justice. Many Republicans have been wrongly led to believe that tort "reform" is some kind of Reaganesque trickle-down solution to the high cost of insurance and the high cost of medical care. The facts, however, don't support such a notion. Skyrocketing insurance premiums are not a result of malpractice litigation, and the high cost of medical care stems more from "offensive medicine" (profiteering by doctors seeking to make an extra buck), rather than "defensive medicine" purportedly resulting from fears of malpractice suits.
In 2007, the Congressional Budget Office estimated that costs associated with medical malpractice claims only amounted to 2% of overall health care spending. Furthermore, multiple studies suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and?in some cases?intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high. Doctors are not fleeing the medical profession from fear of lawsuits, and those who are sued for medical malpractice are often permitted to continue working with little to no professional censure for the harm they inflicted.
The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don't like equal justice. They want preferential treatment?something they are accustomed to getting from politicians because of their hefty campaign contributions.
Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants?rich and poor alike?as equals before the law. Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to "problems" that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients. Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states. The people in Topeka may approach the same problem differently from the folks in Tallahassee. They may be experiencing different problems, or perhaps, none at all. In any event, the residents of Attapulgus, Georgia don't want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.
Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct. It is an affirmative action program for corporate miscreants. Incorporating tort reform into health care reform will do nothing to cut medical costs. It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.
If Republicans are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.
Texas capped excessive malpractice suits four years ago. It’s working fine. It’s time the rest of the country catches up.
Needless to say, that was the last class acition suit I ever took part in.
Here’s the CBO report.
What’s in your post doesn’t seem to work for me.
http://www.cbo.gov/ftpdocs/99xx/doc9924/Chapter7.11.1.shtml
That is a most excellent point. This article relies on studies and claims and theory and principle when it doesn’t have to.
Real world examples trump all that.
We have a real world example of tort reform: Texas. And it’s working. Doctors are flocking to texas. Their costs have changed for the better.
A real world example trumps all in most cases.
.
Nobody except the trial lawyers ever makes a dime on class action suits.
Sorry, I should have checked. Normally the links work
Written like a true lawyer.
I’ve recently seen on several threads a table comparing Liberty to “Soft” Tyranny. No. 7 says that under Liberty “Economic activity is driven by a large number of small entities interacting according to simple rules” while under Tyranny it is driven by “... a small number of large entities operating within the constraints of complex regulatios.”
I’m thinking that Republicans *have* allowed some businesses to grow so large and their competitors become so small in number that they are practically cartels, to the detriment of our citizens’ freedom.
Trial lawyers already have their cartel to the detriment of our citizens’ freedom.
Each group has supported their respective group of political enablers... to the detriment of our citizens’ freedom.
Two years ago I doubt I would have seen this in quite this light and like to think that FR and similar sources have helped to open my mind in many ways. I still see a huge difference between Conservatives and Liberals but between Republicans and Democrats?... not so much.
My four cents’ worth (i have copper pennies).
The medical establishment must withdraw services from all lawyers and their extended families, paralegals and employees.
Trial lawyers serve a valuable function, but we do have a few too many of them. Maybe “inverse decimation” would help: force them to count off, one to ten, then instead of executing number ten, execute numbers one through nine....
No worries. Can’t blame you for another site’s bad link.
If it makes you feel better, I often times don’t check the linked links either. :-)
So I often times get corrections like that.
The problem is, the Republicans are truly committed to federalize the laws on everything. And they are using this phoney crisis about “Health Care Reform” to do it.
If Republicans are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.
Senator DeMint and Shadeg have proposed that the Federal Congress can allow citizens of one state to set aside the laws of their own state and choose the laws of some other state, and under color of "Federal supremacy," the Congress of the United States can allow that. They call it "allowing interstate commerce in health insurance," but that Republican proposal goes much further than just allowing a company in one state access to markets in other states. It sets up a system where the Federal government can regulate insurance, and can pick and choose the laws of any one state and apply them to citizens in any another state. It say that a company in Kansas can sell it’s products in Massachusetts, but neither the company nor it’s new customers who live in Massachusetts have to follow the laws in the state of Massachusetts. It’s a power grab that is very dangerous.
By the way, if you don’t see the problem, look at
What I fear most is that the Dems will put the precise Republican language for Liability Reform into their bill, and start pointing out that the “Insurance Exchange” that they are proposing will allow anyone in the exchange to purchase policies offered by insurers in any state (they might make some minor changes to support this). Then what? Will the Repulblicans go along with it?
Wake Up Conservatives! (and I’ve given up on many Republicans as Conservatives).
The problem isn’t what is left out of the proposed bill. The problem is what is in it now. Adding “Republican proposals” won’t fix this thing. Many of the “Republican proposals” will actually make it worse.
If a trial lawyer, and your Mother in law fall off a bridge, which one hits first?
Who cares!
Agree completely...
As an old economics professor once told a libtard during my college days, “If your theory flies in the face of reality, it ain’t reality that’s wrong”. A classic I’ve always remembered and used often; as a side note, the response was not “grasped” by the liberal “student”.
I knew as soon as he said it the other night that it was a red herring, a lie, a political diversion...
Like I’ve said before, pass this sucker, get it signed...If they think we are mad and angry now...Standby...
TORT REFORM ONLY
TORT REFORM FIRST
TORT REFORM NOW!
Wait a year or two to see what effect that has on relieving the costs in the system, and on physicians. Then look into possible other things.
I would not mind seeing other SEPARATE bills, too... such as allowing insurance to be bought outside your state. These massive bills have to stop. They are simply invitations for more corruption and a loss of freedom.
“Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct.”
The whole article is full of straw man arguments. Practically no one that is advocating for “tort reform” is proposing to protect “wrong doers”. Medical mistakes are made for a variety of reasons, and if someone suffers as a result they have a right to “reasonable compensation”. The desired goal of reform should be to weed out frivolous suits and people seeking to “sue their way to prosperity”.
Tort reform should also extend to product liability. Part of the reason U.S. manufacturing has declined is due to the costs of defending against lawsuits. Foreign manufacturers aren’t on the same playing field in this respect. People that are injured by defective products should have recourse, but we shouldn’t be awarding obscene payouts to people that are stupid enough to sleep with curling irons or shower with hair dryers.
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